The A.C.L.U. Needs to Rethink Free Speech

By K-Sue Park

Aug. 17, 2017

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White supremacists at a rally in Charlottesville, Va., on Saturday.CreditCreditJoshua Roberts/Reuters

The American Civil Liberties Union has a long history of defending the First Amendment rights of groups on both the far left and the far right. This commitment led the organization to successfully sue the city of Charlottesville, Va., last week on behalf of a white supremacist rally organizer. The rally ended with a Nazi sympathizer plowing his car into a crowd, killing a counterprotester and injuring many.

After the A.C.L.U. was excoriated for its stance, it responded that “preventing the government from controlling speech is absolutely necessary to the promotion of equality.” Of course that’s true. The hope is that by successfully defending hate groups, its legal victories will fortify free-speech rights across the board: A rising tide lifts all boats, as it goes.

While admirable in theory, this approach implies that the country is on a level playing field, that at some point it overcame its history of racial discrimination to achieve a real democracy, the cornerstone of which is freedom of expression.

I volunteered with the A.C.L.U. as a law student in 2011, and I respect much of its work. But it should rethink how it understands free speech. By insisting on a narrow reading of the First Amendment, the organization provides free legal support to hate-based causes. More troubling, the legal gains on which the A.C.L.U. rests its colorblind logic have never secured real freedom or even safety for all.

For marginalized communities, the power of expression is impoverished for reasons that have little to do with the First Amendment. Numerous other factors in the public sphere chill their voices but amplify others.

Most obviously, the power of speech remains proportional to wealth in this country, despite the growth of social media. When the Supreme Court did consider the impact of money on speech in Citizens United, it enabled corporations to translate wealth into direct political power. The A.C.L.U. wrongly supported this devastating ruling on First Amendment grounds.

Other forms of structural discrimination and violence also restrict the exercise of speech, such as police intimidation of African-Americans and Latinos. These communities know that most of the systematic harassment and threats that stifle their ability to speak have always occurred privately and diffusely, and in ways that will never end in a lawsuit.

A black kid who gets thrown in jail for possessing a small amount of marijuana will face consequences that will directly affect his ability to have a voice in public life. How does the A.C.L.U.’s conception of free speech address that?

The A.C.L.U. has demonstrated that it knows how to think about other rights in a broader context. It vigorously defends the consideration of race in university admissions, for example, even as conservative challengers insist on a colorblind notion of the right to equal protection. When it wants to approach an issue with sensitivity toward context, the A.C.L.U. can distinguish between actual racism and spurious claims of “reverse racism.”

The government’s power is not the only thing that can degrade freedom of expression, which Justice Benjamin Cardozo once described as “the matrix, the indispensable condition, of nearly every other form of freedom.” The question the organization should ask itself is: Could prioritizing First Amendment rights make the distribution of power in this country even more unequal and further silence the communities most burdened by histories of censorship?

This is a vital question because a well-funded machinery ready to harass journalists and academics has arisen in the space beyond First Amendment litigation. If you challenge hateful speech, gird yourself for death threats and for your family to be harassed.

Left-wing academics across the country face this kind of speech suppression, yet they do not benefit from a strong, uniform legal response. Several black professors have been threatened with lynching, shooting or rape for denouncing white supremacy.

Government suppression takes more subtle forms, too. Some of the protesters at President Trump’s inauguration are facing felony riot charges and decades in prison. (The A.C.L.U. is defending only a handful of those 200-plus protesters.) States are considering laws that forgive motorists who drive into protesters. And police arrive with tanks and full weaponry at anti-racist protests but not at white supremacist rallies.

The danger that communities face because of their speech isn’t equal. The A.C.L.U.’s decision to offer legal support to a right-wing cause, then a left-wing cause, won’t make it so. Rather, it perpetuates a misguided theory that all radical views are equal. And it fuels right-wing free-speech hypocrisy. Perhaps most painful, it also redistributes some of the substantial funds the organization has received to fight white supremacy toward defending that cause.

The A.C.L.U. needs a more contextual, creative advocacy when it comes to how it defends the freedom of speech. The group should imagine a holistic picture of how speech rights are under attack right now, not focus on only First Amendment case law. It must research how new threats to speech are connected to one another and to right-wing power. Acknowledging how criminal laws, voting laws, immigration laws, education laws and laws governing corporations can also curb expression would help it develop better policy positions.

Sometimes standing on the wrong side of history in defense of a cause you think is right is still just standing on the wrong side of history.

K-Sue Park is a housing attorney and the Critical Race Studies fellow at the U.C.L.A. School of Law.